Who should be finalizing a divorce agreement; the spouses, or the judge?
I had a client, John, who had been married for twenty-eight years. He was a portly, but tidy man. He always wore a crisp, long-sleeved, button-down, collared shirt, a pair of pressed beige slacks, and tasseled dress shoes. Although we were discussing a divorce that he clearly did not want, he was quick to smile and laugh. While his anger about the divorce seemed infinite and unconstrained at times, he decided to handle the divorce collaboratively and ultimately retained me.
He earned significantly more than did his wife, Sara. His elderly parents lived in a separate mother-in-law cottage at the family residence, with their adult disabled son, John’s younger brother, Jim.
After they each met with the facilitator, Mary, she shared their goals with the rest of the team. John wanted to retain the home so that his family could continue to reside there with him, to have enough extra income to cover the care they required, and to maintain as good a relationship with Sara as possible. Her goals were to have financial security and to leave the marriage with John still as a good friend.
Both John and Sara shared an interest in protecting his parents and his brother from any fallout in the divorce, and hoped that John could afford to keep the house. If not, his parents would end up in assisted living, not a happy prospect, and they would need to find somewhere for Jim to reside, as well.
At our first meeting professionals-only teleconference, although somewhat unorthodox in the collaborative model, Mary asked us attorneys to explain what we felt our clients would receive if we litigated. Peggy believed that Sara might receive as much as $4,000/month indefinitely in spousal support. I was convinced that the figure was closer to $3,500/month, but otherwise agreed with Peggy.
At our first full team meeting, we advised the parties to exchange financial “discovery” and to meet with the neutral financial professional. After they did this, but prior to the second meeting, the professionals met again to discuss the status. I was apprehensive that Sara expected too much alimony to meet their joint goal of allowing John to keep the house. However, Matt relieved my fears by detailing his recent conversation with her. (Peggy had come along because Sara was uncertain of what to expect and had asked her.)
Matt explained that Sara was very concerned with maintaining her standard of living. “I just don’t want to feel like I’m taking a step back in life, you know what I mean?” Sara said.
“When you split one household into two, each party will inevitably have a reduction in income,” he reasoned.
Peggy added, “And wasn’t one of your interests that John be able to keep the home so that his parents and brother wouldn’t be uprooted? Do you think that he can afford to keep the home and pay you enough to maintain your standard of living?”
“Well, no,” Sara admitted.
“Can you envision yourself living in a smaller, less expensive home? Maybe a condo or a townhouse? Less to take care of?” Matt asked.
“Yes, I suppose that would be nice. I do hate cleaning up that big home and after all of those people. It will be easier to only have myself to take care of, and I guess I don’t need all of that room.”
“You mentioned your goal of financial security,” Matt reminded her. “Could you reduce your standard of living, and the amount of money that you need from John, and achieve that?
She thought for a moment. Matt and Peggy could almost see the wheels spinning. “If I have a smaller home, I don’t really need all that money from John. If I’m not caring for his family, I could increase my hours at work. In a few years, I’ll get social security, too.”
She quickly came to grips with the fact that, by the time John bought out her interest in their home, and paid alimony of $3,500/month or more, he wouldn’t be able to afford to keep the house. But maybe she didn’t need him to.
Sara knew that if she insisted on “her due,” he’d be unable to remain there. By the end of our second meeting, Sara had agreed to $2,500 per month for the first year and that it would decrease by $500/month each subsequent year, until it went to $0 in Year Six.
She and John also agreed that they would each receive 50% of the marital assets. With limited liquid assets, John would have to buy-out Sara’s interest in the home by refinancing it, liquidating some of the equity they had built up during their marriage.
Each would pay their own attorney’s fees and share 50/50 the fees of the other neutral professionals. Because we had handled the divorce collaboratively, each one only owed around $10,000. (Had we gone to court, their fees would have easily reached $100,000 each.)
The following day, guess who tried to renege on the deal that had not even been inked yet? John.
He sat in my office, staring at the floor. I asked him “why?” He just shrugged.
I tried to explain to him that in litigation Sara would still receive 50% of the marital property, as well as probably $3,500/month in alimony, that he would likely have to pay a share of her attorney’s fees, and that they both would incur significantly greater expense, likely paid out of their assets. In other words, he stood to gain nothing by breaking the deal and that he would almost certainly end up worse off.
Fortunately, this divorce wasn’t in mediation, but in collaboration. I sent John back to the facilitator. She was able to get the deal back on track because his issues were emotional and she had special training to deal with human behavior and interpersonal dynamics.
Later I asked her what had been going on in my client’s head and how she had dealt with it. Had he been too proud to accept his wife’s “charity”? Was he just trying to slow down the divorce so that it might not happen?
Mary met with him again to review his goals, i.e. being able to keep the home so that his family was not uprooted, protecting his parents and brother, and maintaining a good relationship with Sara. Then she counseled him to “fix on the outcome you designed.” She asked him to tell her the story of how he envisioned his future without his wife and thereby helped him frame that picture in terms of his goals. “Don’t get sidetracked by outside issues.”
During the process, John had made discoveries about himself that caused him discomfort. That discomfort infected the agreement, in his vision. Truth be told, he really didn’t want the huge caregiver responsibility for his family. He loved them and wanted them close, but couldn’t fathom his life if he took on all of that caregiving. He had a hard time admitting this even to himself because he felt it was a betrayal of the family he loved. However, once he’d separated the cause of his discomfort from his agreement with Sara, and accepted it, he was able to sign it.
Had this divorce been handled in a process not involving a mental health caregiver, the settlement would have fallen apart. John and Sara’s underlying needs, interests, values, and goals would not have been satisfied. Unfortunately, perfectly reasonable and even beneficial settlement options are rejected all the time only because people’s stress and their emotions get in the way of their thinking clearly. But in the collaborative process, we can make it happen because those emotions are addressed.
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About this week’s authors: Joryn Jenkins.
Joryn, attorney and Open Palm Founder, began her own firm here in Tampa after a 14-year career in law, 2 of which she served as professor in law at Stetson University. She is a recipient of the prestigious A. Sherman Christensen award, an honor bestowed upon those who have provided exceptional leadership to The American Inns of Court Movement. For more information on Joryn’s professional experience, take a look at her resume.
